Matter of Schneider

[*1] Matter of Schneider 2007 NY Slip Op 51185(U) [15 Misc 3d 1146(A)] Decided on June 12, 2007 Sur Ct, Nassau County Riordan, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through June 28, 2007; it will not be published in the printed Official Reports.

Decided on June 12, 2007
Sur Ct, Nassau County

In the Matter of the Estate of Leon Schneider, Deceased.



325932

Appearances:
Epstein Becker & Green
250 Park Avenue
New York, NY 10177
(Attorney for Petitioner)

H. William Hodges, Esq.
55 Maple Avenue, Suite 206
Rockville Centre, NY 11570
(Guardian Ad Litem)
Nassau County Department of Social Services
60 Charles Lindbergh Blvd.
Suite 160
Uniondale, NY 11553-3686
(Attorney for Respondent)

John B. Riordan, J.

This is a proceeding brought by Beth Schneider, the executor of the estate of her father, Leon Schneider, to determine the validity of a claim made by the Nassau County Department of Social Services against the estate for public assistance rendered to Zeena Schneider, Leon's wife, from June 10, 1996 to October 3, 2002, while Leon was still alive.

Leon and Zeena had two children, Beth Schneider and Marc Schneider, who is mentally retarded. On August 11, 1972, Leon was shot four times in what Beth described as a "bungled mob" assassination attempt. According to newspaper articles, the gunman mistook Leon and three others for the mobsters he intended to kill. Leon suffered serious injuries that left him unable to work for the remainder of his life. He began receiving Social Security disability benefits in January 1976 and, according to Beth, also received a Worker's Compensation award.

Zeena was diagnosed with Alzheimer's Disease in 1992. On December 22, 1995, Leon, as attorney-in-fact for Zeena, executed an "Assignment to Petition the Court for Support Pursuant to 18 NYCRR 360-3.2." It states that, in consideration of the medical assistance and care provided and to be provided to Zeena by the New York State and Nassau County Departments of Social Services, Zeena assigned to the Nassau County Department of Social Services (DSS) "so much of [her] right, title and interest to petition the court for support from my legally responsible spouse." Leon, as Zeena's spouse, executed a "Declaration of the Legally Responsible Relative" on January 4, 1996. It states, "I, Leon Schneider, declare that I refuse to make my income and/or resources available for the cost of necessary medical care and services for the Medicaid applicant/recipient listed above."

Zeena began receiving Medicaid on June 10, 1996 when she was placed in a nursing home. The record before the court includes a "Medical Assistance Institutionalized Spouse Budget Worksheet," which was signed on March 11, 1997 by a representative of DSS. The worksheet bears the date of March 12, 1997 and lists the date of application as April 18, 1996. According to the worksheet, Leon had $268,048 in excess resources and $157.80 in excess monthly income above the amounts allowed under the rules and regulations applicable at that time.

Leon predeceased Zeena. He died on October 3, 2002. By prior decision (Dec. No. 951, January 13, 2003), the guardian ad litem appointed by the court to represent Zeena's interest in the probate proceeding in Leon's estate was directed to exercise the right of election on her behalf, as the surviving spouse, as the failure to exercise it would have resulted in Zeena's non-eligibility for Medicaid.

Zeena died on December 3, 2003. The guardian ad litem had not yet exercised the right [*2]of election on Zeena's behalf and, the right being personal, with certain statutory exceptions, to the surviving spouse, was extinguished upon her death (EPTL 5-1.1-A [c] [3].) A personal representative has not been appointed for her estate.

On or about June 9, 2003, DSS filed the subject claim for $386,382.77 for public assistance provided to Zeena from June 10, 1996 to October 3, 2002, claiming preferred creditor status pursuant to Social Services Law §104 (1); the claim was rejected by the estate on September 5, 2003.

Leon's will was admitted to probate by decree of this court on February 24, 2004. The will created a supplemental needs trust for Zeena to be funded with Leon's residuary estate. Upon Zeena's death, her supplemental needs trust was to be distributed in accordance with the terms of Leon's will, which contained bequests to Marc of $15,000 in a supplemental needs trust, $15,000 outright to a niece, $5,000 to Putnam ARC, and the rest to Beth.

Beth commenced the instant proceeding on December 1, 2005, asking the court to determine that DSS's claim is invalid and should be disallowed. The petition alleges that Leon's gross taxable estate is approximately $566,000 and the net probate estate is approximately $350,625. Along with the petition, Beth filed an affidavit, sworn to on November 1, 2005, in which she states, but supplies no proof, that Leon "continuously made the monthly spousal income contributions requested by the Department of Social Services." On the return date of the citation, DSS failed to appear or interpose any objection to the relief requested.

By order dated April 21, 2006, the court appointed a guardian ad litem to protect Marc's [FN1] interests in this proceeding. The guardian ad litem filed his report on May 15, 2006, at which time DSS was in default. In the report, the guardian ad litem states that Marc is "woefully disabled" and "functions at the level of a two-year old infant." The guardian ad litem also states that "if the claim is upheld no beneficiary, including my ward, Marc Schneider, who is permanently disabled, will receive any benefit under the will." The guardian ad litem concludes that the claim should be denied.

DSS filed its verified answer to the petition on September 14, 2006, after the court issued Dec. No. 405 on August 16, 2006 giving DSS thirty days from the date of the decision and order to do so. The DSS asserts that the claim is valid under a theory of an "implied contract" between it and Leon.

After the petitioner and DSS submitted memoranda of law, the matter was submitted for decision.

DISCUSSION

The petitioner asserts that the claim against the estate is invalid on the following grounds: (1) both federal and New York State law preclude the recovery of properly paid medical assistance, except in certain circumstances not applicable in this case; (2) DSS cannot recover against the estate of a Medicaid recipient's spouse; (3) DSS cannot recover against the estate of a Medicaid recipient's predeceased spouse; (4) recovery of a claim is prohibited where the Medicaid recipient is survived by a permanently disabled child; (5) DSS failed to meet its burden of proving "sufficient ability" on Leon's part at the time Medicaid assistance was rendered to [*3]Zeena; and (6) the claim is barred by the equitable defense of laches. DSS counters that the claim is properly recoverable from Leon's estate.

Briefly, Medicaid is a "co-operative Federal-State program operated under State direction, but subject to Federal statutory and regulatory guidelines" (Scarpuzza v Blum, 73 AD2d 237, 241-242 [2d Dept 1980]). Enacted by Congress in 1965, Medicaid "was intended to provide partial federal funding of the cost of providing medical care to the disadvantaged" (id. at 241). States are not required to participate in the Medicaid program; however, if a state participates, it is required by federal law to enact a "statutory plan detailing the extent of coverage and comporting with Federal law" (id. at 242). The numerous required provisions of a state Medicaid plan are governed by 42 USC § 1396a (a). State programs are required to comply with 42 USC § 1396p "with respect to liens, adjustments and recoveries of medical assistance correctly paid" (42 USC § 1396a [a] [18]). Section 1396p (b) (1) permits a state to recover for medical assistance properly paid only in limited circumstances:

(A) In the case of an individual described in subsection (a)(1)(B) of this section, the State shall seek adjustment or recovery from the individual's estate or upon sale of the property subject to a lien imposed on account of medical assistance paid on behalf of the individual.

(B) In the case of an individual who was 55 years of age or older when the individual received such medical assistance, the State shall seek adjustment or recovery from the individual's estate, but only for medical assistance consisting of

(i) nursing facility services, home and community-based services, and related hospital and prescription drug services, or

(ii) at the option of the State, any items or services under the

State plan (42 USC § 1396p [b] [1] [A] & [B]).

New York State began participating in the Medicaid program in 1966 (Matter of Colon, 83 Misc 2d 344, 346 [Sur Ct, Kings County 1975], citing L 1966, ch 256, § 3, eff April 30, 1966). Sections 363 through 369 of Article 5, title 11 of the Social Services Law govern New York State's medical assistance implementation. Federal and New York State law generally prohibit "recovery from the property of the recipient" (Matter of Craig, 82 NY2d 388, 391 [1993], citing 42 USC § 1396a [a] [18] and Social Services Law § 369 [2]). Social Services Law § 366 (3) (a) is of particular significance to the determination of this proceeding. It states:

Medical assistance shall be furnished to applicants in cases where, although such applicant has a responsible relative with sufficient income and resources to provide medical assistance as determined by the regulations of the department, the income and resources of the responsible relative are not available to such applicant because of the absence of such relative or the refusal or failure of such relative to provide the necessary care and assistance. In such cases, however, the furnishing of such assistance shall create an implied contract with such relative, and the cost thereof may be recovered from such relative in accordance with title six of article three and other applicable provisions of law (Social Services Law § 366 [3] [a]).

In Matter of Craig (82 NY2d 388 [1993]), the issue before the Court of Appeals was [*4]whether the Wayne County Department of Social Services was entitled to reimbursement from the estate of Elizabeth Craig for Medicaid payments provided to her husband, Norman. In 1983, Norman received Medicaid in the amount of $4,373.79. He died intestate soon after. Wayne County did not seek reimbursement from Elizabeth during her lifetime. The Court of Appeals noted that it was undisputed that she lacked the financial means that would have made her a "financially responsible relative" during the time her husband was receiving benefits and until her own death (id. at 390). By way of further background, Elizabeth also received Medicaid in the amount of $10,478 prior to her death in 1989. She died leaving an estate worth $27,348.50, out of which was paid the $10,478 claim filed in connection to her care. It was the claim against Elizabeth's estate for $4,373.79 (plus interest since 1983) for Medicaid provided to Norman that made its way to the Court of Appeals after the Surrogate's Court and the Appellate Division disallowed the claim (id. at 390-391).

The Court of Appeals determined that the Wayne County Department of Social Services was not permitted to require an individual to sell his home to pay for Medicaid (id. at 391). Thus, the surviving spouse of a Medicaid recipient is not a responsible relative solely by dint of the fact that he or she owned a house. However, an exception to the rule is allowed upon the death of a person who was over fifty-five [FN2] when he received medical assistance. In that instance, his house can be sold to recover Medicaid payments properly paid to the recipient (id.;42 USC § 1396p [b] [1] [B]). The Court of Appeals noted that this was what was done in order for Wayne County to recover the payments made to Elizabeth. But, the Court found that "the exception is qualified and did not allow Wayne County to reach even farther back for recoupment as to her predeceased husband's Medicaid payments" (id.).

The Court of Appeals explained that:

"[t]his scheme is set forth in Social Services Law § 369(2), which incorporates Social Services Law § 366(3). When medical assistance is furnished to an applicant who has a responsible relative with sufficient income and resources to provide medical assistance, the furnishing of such assistance shall create an implied contract with such relative. But a responsible relative' by necessity and statute is determined by the sufficient ability to pay at the time the expenses are incurred. Social Services Law § 101 ( Liability of relatives to support') only provides that the spouse or parent of a recipient of public assistance or care . . . if of sufficient ability, [will] be responsible for the support of such person' (§ 101 [1]; emphasis added)" (id. at 391-392).

The Court of Appeals held that Elizabeth's estate was not liable for the Wayne County Department of Social Services' claim for services rendered to Norman because Elizabeth did not have sufficient means at the time Medicaid payments were furnished to Norman (id. at 392). The

Court found that Wayne County's reliance on Social Services Law §104 [FN3] to support its claim [*5]against Elizabeth was misplaced, because that "section does not take the sufficient means test out of contemporaneous assessment as of the time the Medicaid payments are made on behalf of a predeceased relative" (id.). The Court of Appeals concluded that the "assertion of a nunc pro tunc obligation against the widow's estate is not supportable under presently governing statutes, regulations and decisional reasoning" (id. at 390).

There are three significant differences between the facts in Matter of Craig and those before this court. First, in Craig, Elizabeth was determined to have lacked sufficient means at the time Norman received Medicaid benefits. Thus, the Court of Appeals concluded that Wayne County could not recoup the payments from her estate (id. at 390, 392). In the instant case, a contemporaneous assessment was made by Nassau County DSS that Leon had the requisite

excess resources above the maximum community spouse [FN4] resource allowance [FN5] and income

above the minimum monthly needs allowance,[FN6] and that Leon had refused to contribute for Zeena's care (as shown on the Medical Assistance Institutionalized Spouse Budget Worksheet, annexed as Exhibit 4 to DSS's answer).

Beth acknowledges that an implied contract is created between the Department of Social Security and the spouse of the recipient if the spouse has sufficient ability to contribute to the recipient's care, but refuses to do so. However, she argues that DSS has failed to allege or prove that there was an implied contract between it and Leon and that Leon had the "sufficient ability" to pay at the time Zeena was receiving Medicaid.

There is no question that Leon refused to contribute his resources and income to Zeena's [*6]care. His declaration to that effect is attached as Exhibit 3 to DSS's answer. Further, the Budget Worksheet, which Beth entirely ignores, shows that Leon had excess income and resources at the time that Zeena was receiving Medicaid that he could have contributed toward her care. Thus, the court concludes that an implied contract was created between Leon and DSS.

The second difference between these two cases is that in Matter of Craig (82 NY2d 388, 389-390 [1993]), the community spouse postdeceased the recipient spouse whereas in this proceeding, the community spouse, Leon, predeceased the recipient spouse, Zeena. Beth argues that this forecloses any right of recovery DSS may have had against Leon or his estate. In support of her position, Beth asserts that (1) a "claim against the estate of a predeceased community spouse while the Medicaid recipient continues to receive benefits would require forestalling the closing of the community spouse's estate until the recipient spouse was also deceased;" and (2) since a claim could not be asserted until after the recipient's death, the claim amount would continue to accrue and its value would only be known at the time of death of the recipient."

For purposes of Medicaid, the community spouse is chargeable with the recipient spouse's support only until the time of the community spouse's death (see Social Service Law § 101 [1] & [2]). Indeed, although Zeena continued to receive Medicaid until her death on December 3, 2003, the end date of the claim by DSS is October 3, 2002, the date of Leon's death. The court can discern no reason why happenstance, that Leon predeceased rather than post-deceased Zeena, should vitiate the implied contract between him and DSS. Beth correctly points out that there is no New York State authority directly on point.

However, this is not the first time a New York State court has been faced with the situation where the Department of Social Services has asserted a claim against the estate of a predeceased community spouse for Medicaid payments provided, during the community spouse's life, to the institutionalized spouse. In Matter of Tomeck (29 AD3d 156 [3d Dept 2006], lv granted, 7 NY3d 713 [2006]), the Appellate Division, Third Department, upheld the Saratoga County Surrogate's denial of the Department of Social Service's claim against the estate of the predeceased community spouse on the grounds that no implied contract existed between community spouse and the Department because the community spouse did not have sufficient income and resources to provide for her institutionalized husband at the time Medicaid payments were rendered on his behalf (id. at 159, 162). Notably, the fact that the community spouse died before the institutionalized spouse did not even enter into the Court's discussion.

The third difference is that, in this proceeding, Leon and Zeena were survived by a permanently disabled son, Marc, which, Beth argues, precludes DSS from recovering from Leon's estate. Beth relies on Social Services Law § 369 (2), which states, in relevant part that "[a]ny such . . . recovery shall be made only after the death of the individual's surviving spouse, if any, and only at a time when the individual has no surviving child who is . . . permanently and totally disabled . . . ." (Social Services Law § 369 [2] [b] [ii]). Beth also relies on two cases, Matter of Burstein (160 Misc 2d 900 [Sur Ct, New York County 1994]) and Matter of Andrews (234 AD2d 692 [3d Dept 1996]).

The issue in Matter of Burstein was whether Social Services Law § 369 precluded the New York County Commissioner of Social Services from recovering payments for medical [*7]assistance paid on behalf of a decedent, who was survived by a permanently disabled child who did not depend on the decedent for support (Matter of Burstein, 160 Misc 2d 900, 900-901 [Sur Ct, New York County 1994]). Relying on the "plain language" of Social Services Law § 369 (2), Surrogate Preminger determined that "where a spouse or disabled child receives a benefit from the estate, the statute should apply regardless of whether the spouse or disabled child received financial support during decedent's lifetime, and even if some of decedent's assets are bequeathed to others" (id. at 902).

In Matter of Andrews (234 AD2d 692 [3d Dept 1996]), the Appellate Division, Third Department, affirmed the Rensselaer County Surrogate's order denying the Rensselaer County Commissioner of Social Services's application for a determination of the validity of a claim it made against the estate of Lucretia Andrews for Medicaid benefits provided to her by the county (id. at 693). Lucretia died intestate, survived by two distributees, her children, one of whom was permanently and totally disabled (id. at 692). The Commissioner sought repayment only from Lucretia's non-disabled son's distributive share, which would have left her disabled son's share intact (id. at 693). The Third Department determined that it "cannot endorse this approach because it runs afoul of Social Services Law § 366 (3) and § 101 (1), which limit the responsibility to contribute to the support of a Medicaid recipient to the recipient's spouse or parent" (id.).

However, Beth fails to consider the Appellate Division, Second Department case, Matter of Samuelson (110 AD2d 187 [2d Dept 1985]), wherein that Court reached a different conclusion. In that case, the Court was faced with the issue of "whether Social Services Law § 369 (1) (b) bars recovery of correctly paid medical assistance benefits from the estate of an individual who was the recipient of medical assistance while age 65 and older, and which recipient was survived by a legally blind and totally permanently disabled adult child who was neither a dependent of the recipient nor a named beneficiary under the recipient's last will and testament," a question Surrogate Laurino had answered in the negative (id. at 187-88)[FN7]. The Second Department affirmed the Queens County Surrogate Court's decree (id. at 188). The Court explained that the Surrogate had recognized that a literal reading of the statute would have precluded recovery, but had "concluded that the rationale and intent of the statutory scheme warranted a contrary result" (id. at 189).

In its comprehensive decision, the Second Department also recognized that the literal language of Social Services Law § 369 (1) (b) would render New York City Department of Social Services' claim unenforceable, but, like Surrogate Laurino, concluded that a literal interpretation of the statute would "contravene and frustrate the legislative objective sought to be achieved by the statute" (id. at 190-191). The Second Department examined the legislative history behind Social Services Law § 369 (1) (b) and found an intent to comply with the federal enabling legislation (id. at 191), which it also examined. In so doing, the Court found a:

"legislative concern for the protection of those individuals who were financially dependent on the deceased recipient, namely the recipient's surviving spouse, infant issue, or blind or disabled [*8]children. This protection is afforded by the statutory provisions currently embodied in 42 USC § 1396p (b) (2) (A) and Social Services Law § 369 (1) (b) which seek to insure that the assets of the deceased recipient's estate, upon which these individuals rely, would not be depleted by the recoupment of medical assistance benefits. Thus, contrary to petitioner's position, the triggering factor of the restrictive recoupment statutes is not the mere existence of a surviving spouse, infant issue, or blind or disabled child. Rather, the statute is predicated on the assumption that the surviving spouse, infant issue or blind or disabled child was financially dependent upon the recipient prior to the latter's death and that the protected individual is entitled to a share of the deceased recipient's estate. Clearly, it is this latter group of needy individuals which the restrictive recoupment provision seeks to protect since the depletion of the assets of the deceased recipient's estate would be directly detrimental to their future financial independence and self-care" (id. at 192-193).

Relying also on case law and the fact that, in appropriate situations, courts are permitted to "depart[ ] from the literal letter of a statute in order to sustain the legislative objective of the statutory scheme" (id. at 191). The Second Department affirmed the Surrogate, concluding that "[a] contrary result would undoubtedly undermine the purpose of the statutory scheme since the only recipient of the $28,801.88 windfall to the estate would be the petitioner who is not an intended beneficiary of the restrictive recoupment provision" (id. at 196-197).

In this proceeding, Leon left $15,000, to be placed in a supplemental needs trust, to his permanently disabled son, Marc. There is no evidence that Marc was financially dependent on Zeena or Leon. Thus, this court finds, under the authority of Matter of Samuelson (110 AD2d 187 [2d Dept 1985]), that repayment of DSS's claim is not precluded by Social Services Law § 369 (1) (b). However, since Leon bequeathed to Marc $15,000 to be placed in a supplemental needs trust for his benefit, Marc is to receive that amount prior to the payment of the claim.

Finally, Beth argues that DSS's claim is barred by the equitable defense of laches. She claims that DSS should have brought suit against Leon during his lifetime because, having not done so, Leon "reasonably concluded that because of his unique personal situation the Department of Social Services had acknowledged by its failure to act that he was not sufficiently able to contribute to his wife's care during his lifetime and therefore would not seek financial contribution from him." Beth asserts that this deprived Leon of the opportunity to show that he did not have the "sufficient ability to pay for the Medicaid payments made on behalf of his wife."Beth's assertion is contrary to statute and case law. The time for DSS to make a determination about whether the community spouse has "sufficient ability" to contribute is "at the time the expenses are incurred" (Social Services Law § 101 [1]; Matter of Craig, 82 NY2d 388, 391-392 [1993]). At the time of the assessment, Leon had the opportunity to request a hearing to attempt to establish that the Medicaid minimum monthly needs allowance was inadequate "based on exceptional circumstances which result[ed] in significant financial distress" (Social Services Law § 366-c [8] [a] & [b]). He did not avail himself of this right, and his estate is foreclosed from arguing now that he did not have the sufficient ability to contribute his support to Zeena. Additionally, repayment of the claim, except to the extent such money would come from funds designated for Marc, will not injure any person the recoupment limitations were designed to protect. [*9]

The court is unpersuaded by Beth's argument that federal law forecloses payment of the claim from Leon's estate. Beth bases her assertion on 42 USC § 1396p (b) (1), which limits recovery to the recipient's estate for medical assistance correctly paid, when the recipient was over the age of fifty-five at the time he or she was receiving benefits. In support of her position, Beth has asked the court to consider the case of Hines v Department of Public Aid (358 Ill App 3d 225 [App Ct, Ill 2005]) where the Appellate Court of Illinois determined that the Department of Public Aid could not recover from the estate of the recipient's spouse for Medicaid benefits paid to the recipient (Hines v Department of Public Aid, (358 Ill App 3d 225, 233 [App Ct, Ill 2005]). The court stated, "Because federal law does not provide an exception to the general rule prohibiting recovery of medical assistance payments that would permit recovery from the estate of the surviving spouse of the recipient, Illinois law to the contrary exceeds the authority granted under federal law" (id.).

This court has reviewed the Hines case and finds itself in agreement with the dissenting justice, who stated that the majority's conclusion "ignore[s] the federal mandate that the State shall seek adjustment or recovery of any medical assistance correctly paid on behalf of an individual' at the appropriate time prescribed by statute" (id.).

In 1997, Supreme Court, New York County, rendered its decision in Commissioner of the Department of Social Services of the City of New York v Spellman (173 Misc 2d 979 [Sup Ct, NY County 1997]). The Department of Social Services relied on an implied contract theory under Social Services Law § 366 (3) (a) for its claim against the then-living community spouse. The issue in Spellman was whether, "under the Social Services Law, the Department may recover the Medicaid assistance paid for the care of an institutionalized spouse from the community spouse, or whether such recovery is barred because there is no analogous Federal statutory scheme" (id. at 981). In reviewing the statutory framework of the title XIX of the Social Security Act, the court pointed out that it requires a state or local administering agency to " take all reasonable measures to ascertain the legal liability of third parties . . . to pay for care and services available under the plan'" (id. at 983, quoting 42 USC § 1396a [a] [25] [A]). The court then analyzed, at length, whether federal law preempted state law on this issue (id. at 985) and found that it did not (id. at 986-989). The court also found that the Department did not have the authority to bring the action while the community spouse was alive, but could bring an action after he died against his estate, "since he had sufficient means during the period the medical assistance was rendered" to his wife (id. at 989-990, citing Matter of Craig, 82 NY2d 388, 393 [1993]). The court determined that Social Services Law § 366 (3) (a) created an implied contract between the Department and the community spouse and that Social Services Law § 366 (3) (c) "specifically authorizes a proceeding to compel any responsible relative to contribute to the support of any person receiving or liable to become in need of medical assistance'" (id. at 983).Based upon the governing statutes, Matter of Craig (82 NY2d 388 [1993]) and its progeny, and Matter of Samuelson (110 AD2d 187 [2d Dept 1985]), the court finds that Nassau County DSS's claim against Leon's estate is valid and payable from his net estate, except to the extent payment of the claim would impinge on the $15,000 bequest to Marc to be placed in a supplemental needs trust.

The guardian ad litem indicated in his report dated May 15, 2006 that he has spent 4.5 hours representing Marc in this matter. To the extent the guardian ad litem has spent additional time since then, he is directed to file an affirmation of legal services within fifteen days of the [*10]date of this decision. His fee will be fixed at the foot of the decree.

Settle decree on five days' notice.

Dated: June 12, 2007

John B. Riordan

Judge of the

Surrogate's Court Footnotes

Footnote 1:By Amended Decree dated August 16, 2006, the court appointed Beth and Marcie Agee, a niece of Leon, as the co-guardians of the person and property of Marc pursuant to SCPA 17-A.

Footnote 2:At the time that the Court of Appeals decided Craig, the statutory age was sixty-five (Matter of Craig, 82 NY2d 388, 391 [1993]).

Footnote 3: New York Social Services Law § 104 (1) reads as follows:

"A public welfare official may bring action or proceeding against a person discovered to have real or personal property, or against the estate or the executors, administrators and successors in interest of a person who dies leaving real or personal property, if such person, or any one for whose support he is or was liable, received assistance and care during the preceding ten years, and shall be entitled to recover up to the value of such property the cost of such assistance or care. Any public assistance or care received by such person shall constitute an implied contract. No claim of a public welfare official against the estate or the executors, administrators and successors in interest of a person who dies leaving real or personal property, shall be barred or defeated, in whole or in part, by any lack of sufficiency of ability on the part of such person during the period assistance and care were received."

Footnote 4:A community spouse is defined under New York law as the spouse of an institutionalized spouse (NY Soc. Serv. Law § 366-c [2] [b]).

Footnote 5:The "community spouse resource allowance" refers to the "highest amount of resources the community spouse is permitted to own" and still have the institutionalized spouse qualify for Medicaid (Goldfarb and Rosenberg, New York Guide to Tax, Estate & Financial Planning for the Elderly, § 7.02 [4] [2005 ed]).

Footnote 6:The "minimum monthly maintenance needs allowance" "is the amount set by regulation that is supposed to be adequate to provide for the support of the community spouse" (Goldfarb and Rosenberg, New York Guide to Tax, Estate & Financial Planning for the Elderly, § 7.02 [3] [2005 ed]).

Footnote 7:In New York State, effective April 1, 1994, the age was lowered to fifty-five (Social Services Law § 369 [2] [b] [i] [B]; Goldfarb and Rosenberg, New York Guide to Tax, Estate & Financial Planning for the Elderly, § 8.05 n 2 [2005 ed]).